from the twiqbal dept

I'd missed this one, but Cory Doctorow over at BoingBoing points our attention to the fact that, last month, the Judicial Conference voted to make a little-noticed change in patent lawsuits that should serve to make life more difficult for patent trolls. The details here are more complex than necessary, but the short version is that, under current rules, to file a patent infringement case, the initial complaint can be almost entirely bare bones: basically naming the plaintiff, defendant, patent and saying there's infringement, but providing no real details on the infringement. That aids patent trolls, who often will file questionable lawsuits without even telling the defendant where the infringement occurs -- leading defendants to have to go into the case a bit blind, and making it more appealing to just settle.

A key part of the patent reform proposal that everyone thought was going to happen earlier this year was to change those rules to require the patent holder to have to actually explain where the infringement occurred -- basically inching up the bar to filing a patent lawsuit. Then the trial lawyers came in and killed patent reform dead with a call to Senator Harry Reid. However, it looks like the courts may want to take this matter into their own hands. The Judicial Conference sets the rules by which the courts work under, and it appears that it's basically decided to implement this change in rules (bringing patent lawsuits more in line with most regular lawsuits) anyway, no matter what happens with Congress, though the Supreme Court needs to approve first. Given the way the Supreme Court has handled patent cases lately, it would be surprising if they had a problem with this particular change.

Slowly, but surely, it looks like the courts themselves are chipping away at the setup that makes patent trolling so profitable.

from the because-of-course-it-says-that dept

We've mentioned in the past how Comcast has been pretending to support net neutrality, with ad campaigns stating that it does -- clearly in an attempt to confuse the public. Yesterday, Comcast even put a thing on its own front page claiming that the company is "committed to an open Internet and Net Neutrality."

That links to a blog post from David Cohen, Comcast's chief lobbyist / government relations guy, whose job it is to convince lawmakers to rubber stamp any of Comcast's big plans; from killing (not preserving) net neutrality to letting it acquire Time Warner Cable. Cohen, who has ridiculously and cynically been given the title "Chief Diversity Officer" (by which we assume means the guy who gives money to minority groups to have them repeat Comcast's talking points), tries to make the argument that Comcast supports net neutrality.

Again, as we've noted in the past, this is not actually true. Comcast supports the 2010 open internet rules that were painfully weak and didn't really limit Comcast in any meaningful way. And Comcast supports them because it's legally obligated to support those rules as part of the terms of its last big merger, with NBC Universal. But that agreement runs out in a few years and Comcast has, in the past, shown a willingness to compromise on net neutrality issues, and as it gets bigger that seems likely to continue. Many of Cohen's claims are outright laughable:

Well, unless that lawful content you want to access online is from Netflix, and Netflix hasn't paid up at the Comcast tollbooth. As a reminder, here's the wonderful chart that the Washington Post put together of Netflix's download speeds on various broadband networks. See the black line as it drops and drops before suddenly darting upwards? That's Comcast purposely letting its border routers clog up until Netflix paid the toll, and Comcast went in and hooked up a few more ports (a trivial exercise it could have done quite a while ago if it actually cared about its customers' ability to access lawful content online.)

So, uh, yeah, Comcast does interfere. And, of course, it's done so in the past as well, such as the time it throttled all Bittorrent traffic, whether it was "lawful content" or not. Or how about more recently when it came out that Comcast is using packet injection to insert its own ads over other company's websites?

As today’s actions show, the availability and access to lawful content and websites online is ultimately up to the provider of that specific content.

Until they get big like Netflix, and then it's up to how much that provider is willing to pay Comcast to stop letting their traffic purposely degrade.

We continue to be committed to delivering the same high-quality, high-speed Internet service that our customers rely on each and every day.

Committed... right up until the point Comcast feels it can shake down a company to pay extra just so Comcast's consumers can actual reach them with the bandwidth those customers already bought.

Of course, the meat of the post is that Comcast really, really, really hates the idea of reclassification under Title II. You can practically hear Cohen screaming "don't do it!"

What we don’t support is reclassification of broadband as a telecommunications service under Title II because it would harm innovation and investment. It would harm the very thing we love about the Internet – the speed at which it can change, adapt, and innovate. And a Title II reclassification is simply not necessary.

Except Comcast is not exactly viewed as a particularly innovative or adaptable company. Comcast totally tried to mislead the FCC by misrepresenting a Fortune listing of "most admired" companies (Comcast was way, way, way down the full list, but at the top of a very, very small list of "cable and satellite providers" all of whom were not particularly admired). And should we really forget that Comcast regularly wins the "world's worst company" award from Consumerist? Comcast hasn't exactly shown its ability to be particularly innovative under the existing regime.

In fact, if history has shown anything, it's that greater competition leads to innovation, not greater consolidation. But, remember that Comcast is actively trying to buy one of the biggest competitors in the space, Time Warner Cable. And while both companies and their supporters point out that the two companies don't compete head on for customers, they do compete in other areas, such as in how they can buy third party services. And, of course, just think about how much more leverage a combined company would have in shaking down internet companies in the future...

At Comcast alone, we have invested tens of billions of dollars in our network and continue to invest more every year.

Yes, and that won't change under the FCC's regulations... unless there's no competition. Investment follows competition.

We want our customers to continue to enjoy their favorite videos, web applications, shopping, news, and whatever may come next.

Unless, of course, those favorite videos come from Netflix, and Netflix hasn't paid the toll taker.

Light touch Open Internet regulations should be a part of that.

Because it allowed us to shakedown Netflix, and Comcast now has its eyes on others as well...

Again, if there were a truly competitive market, perhaps this wouldn't matter. But there isn't, in part because of efforts by companies like Comcast to block out anything that might lead to real competition. Comcast isn't supporting an open internet. It's supporting whatever puts it in the best position to shakedown internet companies.

from the because-cafc-is-a-joke dept

What do you know? The Supreme Court has completely shot down two more decisions from the "patent appeals court," which is supposed to be an expert in patent law. The court of appeals for the Federal Circuit (CAFC), which was set up explicitly to cover "complicated" patent cases, has been getting shot down by the Supreme Court left and right over the past few years, often unanimously. It happened a month ago on fee shifting and it happened twice more today on key patent cases: Limelight v. Akamai and Nautilus v. Biosig.

In the Limelight case, CAFC had made the somewhat ridiculous ruling that companies can be guilty of inducing infringement even if there is no direct infringement. Basically, everyone agreed that at no point did Limelight actually infringe on Akamai's patents, because part of the steps are actually completed by Limelight's users, rather than Limelight itself. The CAFC felt that was good enough, and even though at no point does Limelight do everything in Akamai's patent, it still infringed. The Surpeme Court, thankfully, found this ruling to be nonsensical. And, once again, the Supreme Court smacks around the CAFC in its ruling:

Neither the Federal Circuit... nor respondents... dispute the proposition that liability for inducement must be predicated on direct infringement. This is for good reason, as our case law leaves no doubt that inducement liability may arise “if, but only if, [there is] . . . direct infringement.”...

One might think that this simple truth is enough to dispose of this appeal. But the Federal Circuit reasoned that a defendant can be liable for inducing infringement under §271(b) even if no one has committed direct infringement within the terms of §271(a) (or any other provision of the patent laws), because direct infringement can exist independently of a violation of these statutory provisions...

The Federal Circuit's analysis fundamentally misunderstands what it means to infringe a method patent.

Yes, the Supreme Court is saying that the CAFC -- which is supposed to be the expert in understanding patents and patent law -- fundamentally misunderstands what it means to infringe on a patent. Ouch.

The ruling by Justice Alito goes on to point out that the CAFC seems to be trying to set up an entirely new concept of inducing infringement where there is no direct infringement -- and that's clearly not what the law allows. As the ruling notes, if Congress wanted that to be the law, it could write that into the law. But it has not. The Supreme Court further notes (importantly) that "inducement" is different than the criminal standards of "aiding and abetting" (this is an issue we've discussed repeatedly in copyright law -- so everyone insisting that inducing and aiding & abetting are equivalent may want to read carefully what SCOTUS has to say here).

The Nautilus case involved "ambiguous" patent claims -- a major problem in the patent world today. Once again, CAFC took a rather patent maximalist view of things, allowing many ambiguous claims, but the Supreme Court unanimously rejects that as ridiculous:

We conclude that the Federal Circuit’s formulation, which tolerates some ambiguous claims but not others, does not satisfy the statute’s definiteness requirement.

The CAFC standard was that you could reject the claim only if it was "insolubly ambiguous" -- in other words, only if a court couldn't work through multiple interpretations to pick a reasonable one. But, as noted above, the Supreme Court says that goes against the very basic idea of patent law. As the ruling (by Justice Ginsburg) notes:

It cannot be sufficient that a court can ascribe some meaning to a patent’s claims; the definiteness inquiry trains on the understanding of a skilled artisan at the time of the patent application, not that of a court viewing matters post hoc. To tolerate imprecision just short of that rendering a claim “insolubly ambiguous” would diminish the definiteness requirement’s public-notice function and foster the innovation-discouraging “zone of uncertainty,” ... against which this Court has warned.

Rather than choose a different standard, however, the Supreme Court punts the case back to CAFC to see if it can try again, this time with a better standard that maybe, just maybe, the Supreme Court will accept next time around.

Between these recent decisions and the current ethics scandal at CAFC, at what point will we finally consider just putting the court out of its misery. It has never served any purpose other than to massively expand patent law way outside of what the law is supposed to do. It's great that the Supreme Court has finally been putting it back in line, but it seems like there must be a more effective way of doing this than having CAFC hand down so many bad decisions.

from the oops dept

We've argued repeatedly how silly it is for courts to move forward with cases over patent infringement while the USPTO is reviewing those same patents. Considering just how often patent re-exams lead to changes in the patents (including rejecting key claims), moving forward before the USPTO has ruled is kind of silly. It's guaranteed to lead to bad rulings. The latest is that the USPTO has issued a "final" rejection of Apple's "rubberbanding" patent (US Patent 7,469,381), which was one of the patents at issue in the Samsung Apple patent fight, and which the jury said Samsung infringed. In fact, the specific claim (19) that Samsung was said to have infringed was rejected by the USPTO.

We had noted a non-final rejection last fall, and now the USPTO has reiterated that with a final rejection. Of course, even "final rejection" is a bit of a misnomer, since Apple can (and probably will) still appeal to the Patent Trial and Appeal Board (PTAB). Still, given the significant doubt over the quality of the patent, it seems crazy to assume that it was valid as part of the lawsuit.

Also, in the meantime, if we're going to grant massively powerful, technology-landscape-changing patents to companies, is it really so much to ask that the USPTO not get it wrong so damn often? The fact that, on second review, they suddenly realize "oops, that was a mistake!" seems like the kind of thing that we should be worried about, given just how much power there is in a single bad patent.